Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2011

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ

Defendant appeals, as limited by its briefs, from that portion of a judgment of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered January 6, 2011, after a non-jury trial, which dismissed its counterclaim for unpaid rent. Plaintiff cross-appeals, as limited by his briefs, from so much of the aforesaid judgment as dismissed the complaint.

The rent overcharge claim asserted by plaintiff-tenant in the main complaint was properly dismissed under familiar principles of res judicata, since the claim could have been litigated in the prior nonpayment summary proceeding between the parties (see O'Brien v City of Syracuse, 54NY2d 353, 357 [1981]).However, defendant-landlord's counterclaim seeking unpaid rent is not similarly barred, inasmuch as the rental obligations sought to be enforced here by landlord had not yet accrued at the time that the earlier eviction proceeding was tried to completion, and could not have been sued upon therein. We modify the judgment to award defendant the rental arrears shown to be due at trial ($4.085.32), an amount reflecting a proper offset for the full amount of plaintiff's security deposit.

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